South Dakota professors, others aim to refine the law on 'sexting'

MITCHELL, S.D. — Dakota Wesleyan University assistant professor Jesse Weins is part of a team tackling legal issues surrounding the murky world of juvenile “sexting.”

Sexting, or sexualized texting, is the practice of sending illicit photos or videos electronically — generally by cell phone, Weins said, though other handheld or computerized devices may also be involved.

Weins, chairman of the Department of Criminal Justice at DWU, said state laws aren’t keeping up with the everyday realities of electronic messaging. Teens, he said, run the risk of being victimized by poorly drawn statutes.

He and a colleague are the first to address this topic in a soon-to-be-published article in the Tennessee Law Review, a respected national law journal. Weins and Todd Hiestand, assistant professor of criminal justice at Mid America Nazarene University, of Olathe, Kan., try to address the legal gap in a law journal article titled “Sexting, Statutes and Saved by the Bell: Introducing a Lesser Juvenile Charge with an ‘Aggravating Factors’ Framework.”

Weins, a DWU alumnus, met Hiestand while practicing law in Kansas City. Hiestand suggested the topic and the two spent the summer researching and writing.

Juveniles can send sexualized messages themselves, or they can be victimized by sexting. In some cases, kids aren’t aware of the consequences, but most have a sense that what they’re doing is wrong, Weins said.

“I think that most kids do know what they’re doing might have some consequences, but they may not think through the consequences or they don’t believe those consequences — like being charged with some serious child pornography crimes — will apply to them,” he said.

“They’re still charged in juvenile court; it’s not the full adult court extreme, but at the same time, they’re serious charges.”

Some prosecutors have been overly zealous handling sexting cases, he said.

“I’m not opposed to giving prosecutors some discretion to make decisions,” he said, “but some people in states with that discretion feel that prosecutors have been extremely harsh on kids by leveling major charges against them.”

Prosecuting minors under harsh child pornography statutes makes little sense, Weins said. He said one group of Pennsylvania kids is leveling charges of prosecutorial harassment, claiming that the alleged misconduct violates their constitutional rights.

The model law being proposed by Weins and Hiestand creates a base misdemeanor charge for sexting, but it also leaves room for aggravating circumstances.

“States that have responded to this issue so far have responded by creating knee-jerk legislation. They have not thought through all the various types of circumstances. Sexting is not one thing, it’s 50 different things, and it can happen in a variety of ways. States have not done a good job thinking through the consequences of various scenarios,” he said.

His model statute tries to take into account various levels of behaviors. Those behaviors can be frivolous or deadly.

Weins said one girl tried to sell texted photographs of herself to earn money. A teen boy texted compromising photographs of a girlfriend throughout school after their breakup from a relationship. The distraught former girlfriend committed suicide.

Both cases would be considered aggravating incidents that would be deserving of more serious penalties, Weins said.

Prosecutors are generally doing the best they can under the law, he said, but there are few places they can go for guidance. “We just wanted to give some guidance to other states trying to deal with this problem,” Weins said.

“We argue that a legal response is necessary and appropriate for sexting, but that it should take the form of a lesser juvenile charge, rather than the use of traditional child pornography statutes,” he added. “… We hope that the many states’ legislators will consider our model statute as they consider how best to address the issue.”

The Daily Republic in Mitchell, S.D., and the Herald are both owned by Forum Communications Co.

Tags: local news, south dakota, jesse weins, department of criminal justice, dakota wesleyan university, mitchell sd, sexualized texting, cell phone, tennessee law review, todd heistrand, sexting, photos, videos